Alternative context: treatments abroad versus restrictive measures in child supportmeasures in child support

As previously elaborated, with the social pedagogic movement, the conception of child support in Germany changed fundamentally. The original function of child welfare was to design services to support children and adolescents in their individual and social development. Instead of primarily maintaining public security and order, or saving youth from moral decay, the focus was on supporting youngsters’ development and best interests. Alongside this there arose skepticism about detention as a means for educational purposes.

The asylum campaign (Heimkampagne) of the early 1970s represented a peak of resistance and criticism against closed settings in pedagogic contexts.

Custodial structures, with their inherent paradox—preparing youngsters for a free, independent life in closed, restrictive settings—were gradually understood as contradicting the modern principles of child support (Wiesner, 2009). However, today custodial measures are still the method of choice—

particularly in hard-to-reach cases. Three systems are involved in the decision to implement a closed setting: juvenile justice, juvenile psychiatry, and child support. In this triad, perceptions of the situation, the context of the problem, the motives of the actors within the support system, and their disciplinary backgrounds all influence the decision about the character and context of a closed placement.

Closed accommodation as a security or educational provision

During the decision-making process, the three systems are related in a field of tension characterized by competing definitions of power and the

inevitable demands of collaboration (Pankofer, 2006). In the context of closed accommodation, these disciplines and institutions intersect in relation to the following aspects.

On one hand, some youngsters commute between the fields. Many adolescents enter juvenile psychiatry after transfer from a child support setting. Coming from a child support unit, and returning there after psychiatry, a few adolescents are also placed in contact with juvenile justice if they are prosecuted for offenses, and then return or are incorporated into the child support system. Therefore, part of the clientele of each system is congruent, but the responses to these youngsters are discipline-specific and followed by the respective attributions and interventions. On the other hand, all three professions and disciplines have responsibilities in the process of admission to closed settings: Each system has statutory tasks to participate, justify, and renew secure placements. Youth welfare, represented by the youth welfare office, needs to file and justify an application for closed accommodation. Child support institutions are required to offer and implement their respective provisions. Justice, specifically the family court, is responsible for submitting a judicial resolution about the case. This decision needs to be based on a psychiatric examination of the young person concerned. Thus, close interdisciplinary collaboration is required to implement a secure placement.

A particularly difficult field of tension is related to the reasons for closed accommodation. Pankofer (2006) refers to two major problem areas: psychiatric and psychosocial explanations. Psychiatric explanations often represent a clearer basis for decision-making because they draw on an explicit classification system. In contrast, psychosocial explanations are characterized by complexity and ambiguous relationships. As already mentioned in this chapter, psychosocial aspects are often related to long-standing problems in the familial situation, challenging upbringing processes, different forms of violence, and a chain of failed support attempts. Against this background, social factors might be turned into personal features during the decision-making process, blurring circumstances and symptoms in order to justify such a severe intervention into the individual’s personal freedom. The central criterion of constantly escaping and avoiding support is understood as a legitimate coping strategy, but also as a strong reason for

closed accommodation. According to previous studies, decisions favoring intensive child support measures abroad generally are based on psychosocial problem areas, while psychiatric aspects play a minor role or even count as contraindications in this context.

Closed accommodation as an explicit punishment is based on different considerations than these. Deviant behavior can be understood as a threat to societal cohesion, not only because it harms members of the community or erodes the fundamental rules of living together, but also because it fuels anxieties about safety, order, loss of social status, retaliation, and an increasing crime wave. Combined with an alert concern for youngsters’ development, such fears fuel the ongoing debate in Germany about appropriate reactions to deviant behavior, which veers from increasing punishment and restrictions on personal freedom to increasing pedagogic efforts (Müller, 2001; von Wolffersdorff, 2003). This discussion circulates between the legal and educational systems, two areas that have been linked in Germany since the juvenile court movement (Jugendgerichtsbewegung) of 1912 (Müller, 2001, p.

15). Here, education was declared a vital tool to respond to juvenile offenders, since mere punishment was considered to fail. Accordingly, a legal framework for young offenders was established and developed that was oriented toward the young person’s right to education and support with regard to personal, physical, and social development, set out in SGB VIII § 3 and JGG § 2 (Saurbier, 2009). Focusing on the latter, German juvenile criminal law provides three reactions to deviant behavior. While corrective and disciplinary measures have educational aims, the third provision—juvenile sentencing—is the ultima ratio, only implemented if other measures have failed. Educationally oriented efforts comprise support measures such as social skills training, victim-offender mediation, or child support (JGG §§ 10, 12). The legitimation of support-oriented measures is often contested when support provisions pile up but fail to reach the young person, or to halt the escalation of their difficult behavior and its transformation into deviant actions. The impression then emerges that support measures are inadequate to stop the young person’s negative development and its effects on society. Advocates for more punitive measures then argue that the only appropriate answer is to increase and intensify penalties such as taking offenders into custody (Lutz, 2014; Nickolai, 2009).

Locking youngsters up is not only a matter for the juvenile justice system, but also evokes the slogan “setting limits on child support.” Especially in the child support system, closed units and secure measures are controversial in regard to their appropriateness and their adequate implementation according to educational aims (Schrapper, 2006). However, my aim here is not to conduct an exhaustive discussion of the balance between or appropriateness of education and punishment in the juvenile system, or the legitimacy of closed settings in child support. This discussion would lead too far afield, especially because it is a debate about not only professional issues but also moral convictions.¹²

Punishment versus education in youth welfare

The conceptual core of German juvenile justice is related to education. This manifests in JGG § 2 Sec. 1: “The application of juvenile justice especially aims to prevent further offenses by adolescents” (my translation). Attempts to sharpen the law push back against this educational character by emphasizing felony. Particularly regarding brutal and serious crimes, the educational perspective targeting prevention and developmental support struggles for legitimacy. Such cases often provoke reflexive pleas to make the juvenile justice system more aggressive. The juvenile justice system suggests three responses to crime: corrective methods (Erziehungsmaßregeln), followed by disciplinary methods (Zuchtmittel), and finally juvenile sentencing (Jugendstrafe) as the ultimate sanction. Nevertheless, juvenile sentencing, which can be for at least six months and at most 10 years, is also supposed to serve educational purposes, despite its obvious punitive character (Nickolai, 2009). With regard to the educational aspect, the sentence might be carried out in a youth welfare institution. Such measures are mainly aimed at younger adolescents or exceptional cases up to the age of 21. This legal opportunity occasionally leads to a sentence to take part in an intensive measure abroad instead of at a detention center.

12 For a more exhaustive discussion of closed units and punishment in child support, see Möllhof and Möllhof (1979), von Wolffersdorff (1999), Hoops and Permien (2006), Menk et al. (2013), and Engelbracht (2018).

Currently, closed accommodation is strongly promoted as an alternative to detention for youngsters with repeated criminal activities. The youth welfare system is supposed to ensure the educational character of such sentencing, which thus appears as a beneficial compromise on the treatment of young offenders. While politicians and the public mainly agree with this solution, it is widely rejected by child support professionals, who refer to specific educational support possibilities particularly designed for youngsters with complex needs and intensive behavioral problems, including criminal activities (Müller & Peter, 1998). On one hand, this fundamental rejection of closed accommodation refers to the structural difference between juvenile justice and youth welfare. The pedagogic logic oriented toward relationship-building and long-term support opposes the criminal judicial rationale, which prefers a short stay, the controlled restriction of freedom, and the early separation of the youngster from his or her milieu (von Wolffersdorff, 2006).

Wiesner (2009) points to the potential of open support provisions to meet the support needs of this clientele. He argues for the proper implementation of the existing youth welfare structure, instead of an expansion of closed placements. The problematic part here is counteractivity, that is, the youngsters’ resistance against support attempts. In the face of repeated rejections of pedagogic measures, educators are helpless, ultimately often losing their faith in pedagogic measures and turning to more punitive and restrictive provisions, even though punishment of any sort is highly controversial in pedagogy as a means of counteracting behavior: Punishment in the context of pedagogy needs to be embedded within the relationship and should not harm its basis. Furthermore, the response to the behavior should comprise a confrontation and critical examination of its effects, which is particularly difficult with sanctions (Meng, 1934). It is questionable whether it is even possible to establish the type of sustainable relationship necessary for constructive punishment, which depends to a great extent on the pedagogic infrastructure of the institution as well as needs-based care planning. The same applies to open institutions in the context of residential care and all other intensive pedagogic settings. Müller and Peter (1998) argue that supporters of closed accommodation rely on force and distrust support, using single cases as exemplary proof of the failure of pedagogic

approaches with young offenders and hard-to-reach clients. They criticize such reasoning for ignoring the juvenile justice system’s lack of instruments to influence adolescents: Punishment creates fear of punishment, which allows steering behavior—if at all—on a moral basis. This applies particularly to public punishment that is not embedded in viable and trustful relationships between adults and adolescents.

Accordingly, from a pedagogic perspective, the punitive sanctions of juvenile justice are inappropriate, if not counterproductive, for influencing youngsters to accept responsibility for their actions. However, the means at the disposal of youth welfare cannot force compliance. The aim of child support is the self-dependent and socially competent personality in the sense of a responsible subject. It is not possible to simply assert this state; at best, it might be developed and supported by fostering the youngster’s individual and social development, preventing inequalities and reducing handicaps, and creating constructive living conditions for youngsters and their families.

Summing up, youth welfare is dedicated to an educational goal that exceeds the juvenile justice system’s aim of norm compliance (Müller, 2001, p. 133).

It is doubtful to what extent closed settings are a matter of punishment or are appropriate for achieving these goals. It has not yet been conclusively established which measures and settings are suitable in hard-to-reach cases with complex needs and severe behavioral problems.

Measures abroad: an alternative to closed and punitive placements?

Choosing support measures is a social pedagogic task and not a criminal policy issue. It requires meticulous and diversified social pedagogic evaluation resulting in an individual care plan. Accordingly, the decision to implement a support provision abroad is based on diagnostic considerations, and deliberately excludes the instruments of the juvenile justice system or closed placements. However, security policies might apply to enforce measures abroad, comprising an approach to boundary-setting and deterrence. The general child support system does not have such capabilities at its disposal, limiting its range regarding young persons who avoid, evade, or overstrain the system due to their behavioral patterns. In such cases, the support depends

on provisions the general system cannot afford—for instance, secure settings that offer continuous care and intensive individual support beyond mere physical holding (Lindemann, 2015).

In contrast to measures on national soil, measures abroad are associated with calm, seclusion, and protection, but particularly with closedness. This closedness is mainly achieved through foreignness and the great spatial and cultural distance from familiar circumstances at home. Due to such settings’

features, most undesired and harmful influences can be avoided. A similar expectation is often placed on secure placements with regard to risks to the young person or third parties. Wendelin suggests that measures abroad are “closed without lock and key” and “a functional equivalent to closed accommodation” (Wendelin, 2011, p. 34, my translations). It is not used as a determined pedagogic means in daily life. Besides security considerations, in many institutions that practice closed placements freedom becomes a privilege that is only granted via special policies and reward plans. In other words, it becomes a pedagogic means to reward desired or punish undesired behavior. This instrumentalization is not intended in settings abroad. Thus, conceptualizing treatments abroad as a functional equivalent mainly refers to the exclusion of undesired influences and the prevention of risk to the youngster and third parties, without focusing on strict punishment related to the forcible confinement often found in closed settings.

In this context, it must be noted that the closedness related to the foreign macro system gradually decreases from the first day of the measure. The youngsters learn to move around in the host country, and the foreign culture becomes less of a barrier as they assimilate their surroundings step by step, diminishing its restricting function (Witte & Villányi, 2006). Thus, the closed character of the setting abroad is usually not considered as a means per se, but as the basis for pedagogic and therapeutic interventions (Lindemann, 2015). Lutz (2014) holds a similar view, designating the closed and repressive character of settings abroad as medium to avoid actual closed accommodation, accepting it as an opportunity to achieve the objective of integrating hard-to-reach clients. Accordingly, the considerations are not only about the adequacy of the measure, but also about the means (for instance, temporary detention) that are acknowledged to enable child support in the first place.

This is an explosive and controversial aspect of measures abroad: Are such measures just a pedagogic fig leaf for the acceptance of closed placements and the use of force in educational contexts? Do the supporters of closed placements accept possible negative side-effects in favor of its assumed advantages (Pankofer, 2006)? As shown in this subsection, the debate about punishment versus support, and related concerns about closed accommodation of any kind, are closely related to the topic of intensive child support activities. Aimed at a target group that is characterized as hard to reach, suffers from intensive behavioral problems with deviant aspects, and is thus at severe risk of marginalization, intensive measures are often regarded as an alternative to punitive measures. In public debate, such measures are addressed in manifold ways: as fig leaves for covert exclusion and closed placements; as inappropriate, holiday-like treatments for deviant youngsters;

as a hopeful last resort to return the target group to social cohesion; as punitive boot camps for disobedient adolescents.

The question about the real character and objectives of intensive measures abroad raises the question of how “intensive” should be understood: Should we intensify restrictions against youngsters with challenging or deviant behavior? Should we raise our educational efforts? Should we increase our attempt to contain their negative impacts on themselves and society by locking them up? Particularly in the case of intensive measures abroad, their factual closedness (Witte, 2009, p. 238) in combination with the emphasis on accelerated and tailored support makes them attractive as an apparent alternative to secure accommodation. However, the side effects associated with closed settings (such as societal exclusion), the preference for custodial measures over pedagogic support, and the questionable effect of force on pedagogic bonding demand a closer questioning of whether “intensive” simply means “secure” or “exclusionary,” since all these dimensions are contrary to the social pedagogic aim of supporting the young person to develop his or her personality and integrate into the societal context.